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Article

Abstract

Since 2015, the United States Environmental Protection Agency (“EPA”), the State of Maine, and the Penobscot Nation of Maine have been engaged in litigation over Maine’s proposed Water Quality Standards (“WQS”) to be issued pursuant to the Clean Water Act. The EPA rejected some of the State’s proposed WQS because they were not adequate to protect the right of members of the Penobscot Nation to fish for sustenance. The EPA took the position that waters where tribes exercise fishing rights must have WQS that are sufficient to ensure that tribal members can harvest fish for sustenance without endangering their health through exposure to dangerous levels of mercury and other toxins. Moreover, in determining permissible pollutant levels, fish consumption rates should not be determined on the basis of current consumption rates, which are suppressed due to health concerns, but rather on the basis of unsuppressed fish consumption rates. The EPA’s decision was bolstered by the importance of fishing to cultural preservation and the federal government’s trust responsibility toward the Penobscot Nation.

Maine’s challenge to the EPA’s action, Maine v. Wheeler, is ongoing. Maine officials characterized the EPA’s decision as providing illegitimate special protection for Penobscot fishing. In reality, the EPA was simply trying to facilitate the effectuation of existing tribal fishing rights, recognized in federal and state law. Under the current Administration, the EPA is reconsidering its 2015 decision. This Article explores the legal dispute over Maine’s proposed WQS as the latest chapter in the struggle of the Penobscot Nation to vindicate the right to fish for sustenance on the waterways that have supported the Nation since time immemorial.

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